Macken v Jervis - [2015] NZHC 1146

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2014-404-167 [2015] NZHC 1146

BETWEEN
SUSAN CARREL MACKEN, PETER

FRANCIS TOBIN WARREN AND CHRISTOPHER NORMAN LORD Applicants

AND

RONALD PETER JERVIS AND KATHLEEN JERVIS Respondents

Hearing: 6 May 2015

Counsel:

F Whyte for Applicants
S A Connolly for Respondents

Judgment:

27 May 2015

JUDGMENT (NO. 2) OF HEATH J

This judgment was delivered by me on 27 May 2015 at 2.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Lee Salmon Long, Auckland
Barratt-Boys Law Practice, Auckland
Counsel:
S A Connolly, Newmarket

MACKEN v JERVIS [2015] NZHC 1146 [27 May 2015]

CONTENTS

The application [1] The High Court regime [5] Preliminary observations [9] Should costs be awarded other than on a “standard” basis? [12] Why “standard” costs must be ordered [32] Disbursements for expert witnesses [34] Costs on the costs hearing [40] Result [41]

The application

[1] On 6 May 2015, I heard an application for costs by Mr and Mrs Jervis, arising out of my judgment of 23 December 2014.1 I dismissed a proceeding brought by the trustees of the Macken Family Trust (the Trust) to obtain relief under the landlocked land provisions of the Property Law Act 2007 (the Act), in respect of properties at 24 and 24A Wiles Avenue, Remuera. The facts are set out fully in that judgment. I repeat them only to the extent necessary to determine the present
application.

[2] Two substantive issues were raised in the proceeding. 2 The first was the jurisdiction of the Court to make an order of the type sought. The second was whether, if jurisdiction existed, relief should be granted as a matter of discretion. Although I made some observations about the conditions on which I might have granted relief if jurisdiction existed, the Trust’s claims failed for want of jurisdiction. Undoubtedly, Mr and Mrs Jervis were the successful parties in the litigation.

[3] Mr Connolly, for Mr and Mrs Jervis, seeks costs, on their behalf. Primarily, indemnity costs are sought.3 If that claim were unsuccessful, an alternative claim is made for increased costs.4 If neither of those claims succeeded, costs are sought on a standard scale basis.5 For the purpose of this proceeding, costs have been classified
on a Category 2 basis.6

1      Macken v Jervis [2014] NZHC 3408.
2 Ibid, at para [5].
3      High Court Rules, r 14.6(4).
4      Ibid, r 14.6(3).
5      Ibid, rr 14.2–14.5. See also, the extract from Bradbury v Westpac Banking Corporation [2009] 3
NZLRE 400 (CA) at para [27], set out at para [6] below.
6      Ibid, r 14.3.    Macken v Jervis HC Auckland CIV-2014-404-167, 9 May 2014, (Minute of
Associate Judge Doogue) at para [1].

[4] Mr Whyte, for the Trust, submits either that no costs should be ordered in favour of Mr and Mrs Jervis, or they should be reduced below the level of standard scale costs.7 In addition, there are challenges to expenses incurred by two expert witnesses called by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Macken v Jervis

Details

AGLC: Macken v Jervis [2015] NZHC 1146
Case: [2015] NZHC 1146
Decision Date: 27 May 2015

CaseChat Overview and Summary

In the case of Macken v Jervis, the applicants, Susan Carrel Macken, Peter Francis Tobin Warren, and Christopher Norman Lord, sought relief under the landlocked land provisions of the Property Law Act 2007 in respect of properties at 24 and 24A Wiles Avenue, Remuera. The respondents, Ronald Peter Jervis and Kathleen Jervis, successfully defended the proceeding, and subsequently applied for costs. The applicants argued that costs should not be awarded or should be reduced, while the respondents sought indemnity costs for the applicants' unreasonable conduct. The central legal issues were whether costs should be awarded other than on a "standard" basis and why "standard" costs must be ordered.

The Court held that neither party was entitled to indemnity or increased costs due to their unreasonable conduct during the litigation. However, the respondents were successful in defending the proceeding, and thus, entitled to costs on a Category 2 basis. The Court also found that the expert evidence called by the respondents was reasonably necessary and reasonable in amount, and the assessment of disbursements would be left to a Registrar. The Court declined to award costs on the costs hearing itself, considering the factors taken into account in determining the basis on which costs are to be calculated and disbursements are to be fixed.

In conclusion, the Court awarded costs in favour of the respondents on a Category 2 basis, together with reasonable disbursements, to be fixed by the Registrar. These costs will not include those relating to the hearing (on costs) of 6 May 2015.

Orders